The main legal point established in the judgment is that the accused must exercise the right to default bail promptly, and if the charge-sheet is filed before the accused avails of this right, the right gets extinguished. The court also emphasized the importance of prompt action by the court to restrict the prosecution from frustrating the legislative mandate to release the accused on bail in case of default by the investigating agency.

JUDGMENT

Harinder Singh Sidhu, J. - In this petition, the petitioner has challenged the order dated 22.01.2021 passed by Additional Sessions Judge, Amritsar, whereby his application seeking bail under Section 167(2) Cr.P.C has been dismissed.

2. The petitioner is an accused in case FIR No.101 dated 27.05.2020 under Sections 21, 27-A of the Narcotic Drugs and Psychotropic Substances Act, 1985, registered at Police Station Chattiwind, Amritsar. He was arrested on 27.05.2020. He was produced before the Court on 28.05.2020. The challan under Section 173 Cr. P.C. was not filed within the stipulated 180 days. An application seeking extension of time for filing the report under Section 173 Cr. P.C was filed on 07.12.2020. However, before any decision was taken on that application, the petitioner filed the application under Section 167(2) Cr.P.C. seeking bail on 18.01.2021. Both the applications were disposed of vide separate orders dated 22.01.2021. The application seeking extension of time for filing the report under Section 173 Cr.P.C. was allowed. The application of the petitioner seeking default bail under Section 167(2) was dismissed.

3. The Ld. Court has dismissed the application under Section 167(2) holding that before the filing of the application by the accused the prosecution had already filed the application seeking extension of time. By separate order of the same date that application had been allowed.

4. Impugning the aforesaid order, Ld. Counsel for the petitioner has contended that the petitioner was arrested on 27.05.2020. As the investigation had not been completed within maximum period of 180 days as specified under Section 36A of the NDPS Act the petitioner was entitled to default bail under Section 167(2) CrPC. He argued that the mere fact that the prosecution had filed the application seeking extension of time to complete the investigation before the petitioner filed the application under Section 167(2), could not defeat the indefeasible right that had accrued to him as admittedly no order extending the time had been passed before he filed the application.

5. Ld. State counsel on the other hand has supported the impugned order. He argued that before filing of application under Section 167(2) CrPC by the petitioner, the application of the prosecution for extension of time to complete the investigation had been filed which was pending and notice had already been issued to the accused petitioner. Both the applications were decided on the same date. The application of the prosecution was allowed and the application under Section 167(2) was rightly dismissed.

6. The sole question that arises for consideration is that if the application filed by the prosecution seeking extension in time to complete investigation filed prior in point of time is pending when the application under Section 167(2) is filed by the accused can the accused claim an indefeasible right to be released ?

7. On a reading of the decision of Hon'ble Supreme Court in M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 SCC 485, the answer to this question has to be in the negative.

8. In this case Hon'ble Supreme Court has considered various questions concerning the right under Section 167(2) Cr.P.C. It has also referred to the relevant previous decisions on the subject.

9. It was held that if the charge-sheet is not filed within the stipulated period. the accused is not automatically entitled to be released on bail. The accused has to exercise/ 'avail of' his right under Section 167(2). And if the charge-sheet is filed before the accused 'avails of' his right under Section 167(2) the the right gets extinguished.

10. The relevant observations are as under:

"VI. Other relevant precedents pertaining to the right under Section 167(2)

21. We are fortified in our aforementioned conclusions by the three-Judge Bench decision of this Court in Mohd. Iqbal Madar Sheikh v. State of Maharashtra. In that case, though the charge-sheet was submitted after expiry of th